HAMILTON V POLICE HC DUN CIV 2005-412-000054 [2005] NZHC 281 (24 November 2005)

IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY
                                                                 CIV 2005-412-000054



                         LEO THOMPSON HAMILTON
                                 Appellant



                                
          v



                            NEW ZEALAND POLICE
                                 Respondent



Hearing:       24 November
2005

Appearances: A W Belcher for Appellant
             D P Robinson for Respondent

Judgment:      24 November 2005


       
    ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN



[1]    This is a somewhat unusual appeal by Leo Thompson Hamilton against
conviction
on two charges of possession of offensive weapons contrary to
s202A(4)(b) of the Crimes Act. In the case of criminal information
05012010378
the offensive weapon was said to be a steak knife.              In criminal information
05012010379 the offensive weapon
is said to be a vacuum cleaner pipe.


[2]    The Appellant was arrested in relation to these matters. He was also charged
at the
same time with assaulting Vanessa Pakinga with a steak knife; assaulting
Bonnie Pakinga with the vacuum cleaner pipe; assaulting
Kiwi Pakinga with a steak
knife; threatening to kill Kelly Pakinga, Vanessa Pakinga and Kiwi Pakinga.


HAMILTON V POLICE HC DUN
CIV 2005-412-000054 24 November 2005

[3]    On legal advice the Appellant pleaded guilty to all of those counts and was
sentenced
to 12 months imprisonment with leave to apply for home detention
refused. The Judge treated the assaults with a weapon as the lead
sentence and
imposed 12 months on that, on the lesser charges six months imprisonment.


[4]    I note for the sake of completeness,
Mr Belcher has properly abandoned the
appeal against the sentence imposed for what was serious offending.


[5]    This is a matter
that is said to raise questions of high principle, namely that
no-one should face conviction effectively on the same matter twice.
In other words
it is alleged the two possession of weapons counts amount to duplicity.


[6]    While I accept it is a matter of
high principle, one must add that any decision
of this Court will have little practical impact in any way at all. If it is successful
it
will certainly remove two convictions from this man's record, but as that runs into
probably hundreds, but certainly eight pages
of previous convictions, it is going to
have little impact in the future if he continues to offend. Having said that, counsel
has
properly brought the matter before the Court in line with the procedure that was
set out by the Supreme Court (as it then was) in
R v Moore  [1974] 1 NZLR 417.


[7]    Mr Belcher argues the elements necessary to make out the charges, and the
evidence to support them on the charges of possession,
are effectively duplicated in
the more serious charges. In other words, he maintains the actus reus and the mens
rea of the possession
charges merges into the actus reus and the mens rea of the more
serious charges.


[8]    The Crown, however, effectively argue they
are separate and distinct
offences. In relation to the knife it is submitted that, notwithstanding no mention of
this in the summary
of facts, the knife must have been sourced earlier so therefore he
was in possession. In relation to the vacuum cleaner pipe Mr Robinson
properly
points to the activities of the Appellant after the complainants were successfully
barricaded in a room when he continued
to storm about the house with the vacuum
cleaner pipe issuing threats and apparently banging it against doors.

[9]     In relation
to the knife, s202A(4) reads:

        Every one is liable to imprisonment for a term not exceeding [2 years]--

        ...

  
     (b)      Who has in his possession in any place any offensive weapon or
        disabling substance in circumstances that prima
facie show an intention to
        use it to commit an offence involving bodily injury or the threat or fear of
        violence.

[10]    It is accepted that the necessary elements are that the Appellant had in his
possession an offensive weapon, and prima facie
the circumstances showed an
intention to use it to commit an offence involving bodily injury or the threat of fear
of such violence.
In relation to that I accept Mr Belcher's submission that the
necessary facts, the actus reus, and the mens rea merge into the more
serious offence
under s202C, that is that the Appellant committed an assault using something as a
weapon. It seems to me, with respect
to the police, that having brought the more
serious charge they should not have brought the possession charge in relation to the
knife. There is duplicity and on that basis the appeal is allowed and that particular
conviction is quashed.


[11]    However, in
relation to the vacuum cleaner pipe it strikes me the matter is
somewhat different for the reasons enunciated by Mr Robinson in his
submissions.
It was a separate matter. After the complainants were barricaded in a room this man
continued to be in possession of
what is accepted was an offensive weapon, in
circumstances where there was clearly a prima facie intention to use it as was
described
in the summary of facts. In relation to criminal information 05012010379
the appeal is dismissed.




Solicitors:
O'Driscoll & Marks,
Dunedin for Appellant
(Counsel ­ A Belcher, Dunedin)
Crown Solicitor, Dunedin for Respondent
CC:
Judge MacAskill